Delhi District Court
Vimala Devi And Ors vs Raj Kumar Jaat And Ors on 2 January, 2024
IN THE COURT OF SH: JAGDISH KUMAR PO:MACT2 (SOUTH
WEST): DWARKA: NEW DELHI
MACT No.221/17
FIR No.270/2016
PS Hamir Was, Rajasthan.
1. Smt Vimala Devi
W/O Late Sh Pawan Kumar Gurjar
2. Manavi Gurjar
D/O Late Sh Pawan Kumar Gurjar
3. Smt Nanchi Devi
W/O Sh Liladhar Gurjar
4. Sh Liladhar Gurjar
S/O Sh Jaikaran Gurjar.
Permanent R/O Monka Ki Dhani Ward No.3,
Chirawa Jhunjhunu,
Rajasthan333026,
Presently R/O RZH11, Nanda Block,
Near Jamun Tree Mahavir Enclave,
Palam, New Delhi.
....Petitioners
VERSUS
1. Sh Raj Kumar Jaat
S/O Sh Ram Singh Jaat
R/O Bas Lal Singh,
Rajgarh.
Distt Churu Rajasthan.
2. Sh Pradeep Kumar
S/O Sh Sajjan Pal
R/O NIMA Rajgarh,
Distt Churu Rajasthan
MACT no.221/2017 Vimala Devi & Ors & Ors. Vs. Raj Kumar & Ors. Page 1 of 16
3. LibertyVideocon General Insurance Co Ltd
Alps Building, 56, Janpath Road,
Janpath Connaught Place, Delhi1100 01.
....Respondents
DATE OF INSTITUTION : 23.02.2017
ARGUMENTS HEARD ON : 02.01.2024
DATE OF AWARD : 02.01.2024
FORM - V
COMPLIANCE OF THE PROVISIONS OF THE MODIFIED CLAIMS TRIBUNAL AGREED PROCEXDURE TO BE MENTIONED IN THE AWARD
1. Date of the accident 25.12.2016
2. Date of intimation of the accident by the investigating N/A officer to the Claims Tribunal (Clause 2) ( Outstation petition )
3. Date of intimation of the accident by the investigating do officer to the insurance company. (Clause 2)
4. Date of filing of Report under section 173 Cr.P.C. Not known before the Metropolitan Magistrate (Clause 10)
5. Date of filing of Detailed Accident Information Report N/A (DAR) by the investigating Officer before Claims Tribunal (Clause 10)
6. Date of Service of DAR on the Insurance Company do (Clause 11)
7. Date of service of DAR on the claimant(s). (Clause 11) do
8. Whether DAR was complete in all respects? (Clause do
16)
9. If not, whether deficiencies in the DAR removed later do on?
10. Whether the police has verified the documents filed do with DAR? (Clause 4) MACT no.221/2017 Vimala Devi & Ors & Ors. Vs. Raj Kumar & Ors. Page 2 of 16
11. Whether there was any delay or deficiency on the part Not known of the Investigating Officer? If so, whether any action/direction warranted?
12. Date of appointment of the Designated Officer by the Not known insurance Company. (Clause20)
13. Name, address and contact number of the Designated Not known Officer of the Insurance Company. (Clause 20)
14. Whether the designated Officer of the Insurance Not known Company submitted his report within 30 days of the DAR? (Clause 20)
15. Whether the insurance company admitted the liability? N/A If so, whether the Designated Officer of the insurance company fairly computed the compensation in accordance with law. (Clause 23)
16. Whether there was any delay or deficiency on the part N/A of the Designated Officer of the Insurance Company? If so, whether any action/direction warranted?
17. Date of response of the claimant (s) to the offer of the Not known Insurance Company. (Clause 24)
18. Date of the Award 02.01.2024
19. Whether the award was passed with the consent of the No parties? (Clause 22)
20. Whether the claimant(s) were directed to open saving Yes bank account(s) near their place of residence? (Clause
18)
21. Date of order by which claimant(s) were directed to 19.09.2018 open saving bank account (s) near his place of residence and produce PAN Card and Aadhar Card and the direction to the bank not issue any cheque book/debit card to the claimant(s) and make an endorsement to this effect on the passbook(s). (Clause
18)
22. Date on which the claimant (s) produced the passbook 07.02.2023 of their saving bank account near the place of their residence along with the endorsement, PAN Card and MACT no.221/2017 Vimala Devi & Ors & Ors. Vs. Raj Kumar & Ors. Page 3 of 16 Aadhar Card? (Clause 18)
23. Permanent Residential Address of the Claimant(s) Permanent R/O (Clause 27) Monka Ki Dhani Ward No.3, Chirawa Jhunjhunu, Rajasthan333026, Presently R/O RZH11, Nanda Block, Near Jamun Tree Mahavir Enclave, Palam, New Delhi.
24. Details of saving bank account(s) of the claimant(s) and Petitioner No.1 the address of the bank with IFSC Code (Clause 27) S/B Account No. 922010058311440 IFSC Code:
UTIB0001429 at
Axis Bank Chirawa
Near Naveen
Cinema Pilani Road
Chirawa Rajasthan
333026
Petitioner No.2
SB A/C No.
41767349432 IFSC
Code:
SBIN0017599 at
State Bank of India,
Village Mandrela,
District Jhunjhunun
Rajasthan
Petitioner No.3
SB A/C No.
10278100010682
IFSC Code:
MACT no.221/2017 Vimala Devi & Ors & Ors. Vs. Raj Kumar & Ors. Page 4 of 16
BARBOCHIRW at
Bank of Baroda ,
Chirwa, Rajasthan
Petitioner No.4
SB A/C No.
34412535437 IFSC
Code:
SBIN0006103 at
State Bank of India,
Chirwa, Rajhasthan
25. Whether the claimant(s) saving bank account(s) is near Yes
his/her place of residence? (Clause 27)
26. Whether the claimant(s) were examined at the time of Yes passing of the award.
27. Account number, MICR number IFSC Code, name and State Bank of India, branch of the bank of the Claims Tribunal in which the Branch Sector10, award amount is to be deposited/transferred Dwarka Courts, New Delhi Account No. 37665510911 MICR No. 110002483 FORM - IV A SUMMARY OF COMPUTATION OF AWARD AMOUNT IN DEATH CASES TO BE INCORPORATED IN THE AWARD
1. Date of accident: 25.12.2016
2. Name of deceased: Pawan Kumar
3. Age of the deceased: 27 years
4. Occupation of the deceased: Private Job
5. Income of the deceased: Rs. 30,000/ per month (as per the claim).
6. Name, age and relationship of legal representatives of deceased:
S.No. Name Age Relation
MACT no.221/2017 Vimala Devi & Ors & Ors. Vs. Raj Kumar & Ors. Page 5 of 16
(i) Vimala Devi 26 yrs Mother
(ii) Manvi Gurjar 08 yrs Daughter
(iii) Nanchi Devi 61 yrs Mother
(iv) Liladhar Gurjar 67 yrs Father
Computation of Compensation
S.No. Heads Awarded by the Claims
Tribunal
7. Income of the deceased (A) Rs. 5,226/ As per Minimum
Wages in Rajasthan
8. AddFuture Prospects (B) (40%) Rs.2090.40/-
9. LessPersonal expenses of the deceased Rs.1829.10/ 1/4th as deceased (C) was four dependent at the time of accident.
10. Monthly loss of dependency Rs. 5,487.30/ { (A+B) - C =D}
11. Annual loss of dependency (Dx12) Rs. 65,847.60/ 12. Multiplier (E) 18
13. Total loss of dependency (Dx12xE = F) Rs. 11,85,500/ ( In lumbsum)
14. Medical Expenses (G)
15. Compensation for loss of love and Nil affection (H)
16. Compensation for loss of consortium Rs. 1,76,000/-
(I)
17. Compensation for loss of estate (J) Rs.17,000/
18. Compensation towards funeral Rs.17,000/ expenses (K)
19. TOTAL COMPENSATION Rs. 13,95,500/ (F+G+H+I+J+K =L)
20. RATE OF INTEREST AWARDED 7.5% per annum 21 Interest amount up to the date of As per calculation compliance (M) MACT no.221/2017 Vimala Devi & Ors & Ors. Vs. Raj Kumar & Ors. Page 6 of 16
22. Total amount including interest (L+M) As per calulation
23. Award amount released 10%
24. Award amount kept in FDRs 90% equal monthly FDR's
25. Mode of disbursement of the award NEFT amount to the claimant (s) (Clause 29)
26. Next date for compliance of the award. 01.02.2024 (Clause 31) AWARD
1. This is a petition filed U/S 166 read with Section 140 ( Old) of the M.V Act. As per facts of the present case, on 25.12.2016, the deceased Pawan Kumar S/O Sh Liladhar Gurjar, was going towards Pilani with his brother inlaw on his motor cycle. When he reached near Swami Ashram, Rohi Thirpali Badi Rajasthan, within the jurisdiction of P.S Hamir Was, Rajasthan,one tyre of the motor cycle got puncher. They stand their motor cycle on the right side of the road and deceased was standing beside the motor cycle. Meanwhile a Tractor bearing No. RJ10RB5856 came from wrong side with very high speed, in rash and negligent manner and hit the motor cycle and the deceased. As a result of this forceful impact the deceased received fatal injury and died at the spot. After the accident injured was taken to Shri Fool Chand Rajgarhiya Rajkiya Referal Hospital, Rajgarh, Churu, Rajasthan where his postmortem was conducted.
2. It is contended in the petition that the said accident took place, due to rash and negligent driving of the offending tractor by Raj Kumar Jaat, who has been impleaded as respondent no. 1. The owner of offending vehicle, Sh Pradeep Kumar, is impleaded as respondent no. 2. As the offending vehicle was insured with Liberty Videocon General Insurance Company MACT no.221/2017 Vimala Devi & Ors & Ors. Vs. Raj Kumar & Ors. Page 7 of 16 Ltd , it is impleaded as respondent no. 3 in the present case. By the present case, the petitioners are claiming a sum of Rs. 1,00,00,000/ (Rupees One Crore Only) from respondents as compensation.
3. The respondent No.1 and 2 have filed their separate W.S stating therein that the respondent No.1 has been falsely implicated in this case. It is stated that at the time of accident respondent No.1 has also suffered fracture in his right leg and plaster was fixed on the same.
4. The respondent no. 3 (insurance company) filed its W.S stating inter alia that negligence is the essential ingredients in an application U/S 166 of M.V Act and the same is to be proved by leading evidence by the claimant. As onus of proving the rash and negligence is lie upon the petitioners.
5. After completion of the proceedings, following issues were framed on 26.04.2022 as under:
(i) Whether Pawan Kumar Gujjar sustained fatal injuries in a motor vehicle accident dated 25.12.2016 due to rash and negligent driving of vehicle (Tractor) bearing No. RJ 10RB5856 being driven by Raj Kumar Jaat, owned by Pradeep Kumar and insured by Liberty Videocon General Insurance Co Ltd ? OPP.
(ii) Whether the petitioners are entitled to claim compensation, if so, what amount and from whom? OPP.
(iii) Relief.
6. In order to prove their claim, petitioners have examined petitioner No.1 Smt Vimala Devi as PW1 and Smt Nanchi Devi as PW2. None of the respondents have examined any witness in support of their case.
7. I have heard ld. Counsel for the petitioners as well as Ld Counsel for the R.3,Insurance company. None has appeared on behalf of R.1 and R.2 to MACT no.221/2017 Vimala Devi & Ors & Ors. Vs. Raj Kumar & Ors. Page 8 of 16 argue the case. I have given my thoughtful consideration to the submission made by them and I also perused the record. My issuewise findings are as under: ISSUE No.1 Whether Pawan Kumar Gujjar sustained fatal injuries in a motor vehicle accident dated 25.12.2016 due to rash and negligent driving of vehicle (Tractor) bearing No. RJ 10RB5856 being driven by Raj Kumar Jaat, owned by Pradeep Kumar and insured by Liberty Videocon General Insurance Co Ltd ? OPP.
8. Ld Counsel for the Insurance Company has argued that no witness has been produced by the petitioners to prove that the offending vehicle was being driven by R.1 in rash and negligent manner.
9. On the other hand, Ld Counsel for the petitioners has argued that PW1 has filed the certified copy of charge sheet in which R.1 Raj Kumar has been made as an accused U/S 279/304A IPC which is sufficient to prove the fact of rash and negligent driving by R.1.
10. Having considered the submission of Ld Counsel for the petitioners as well as Ld Counsel for the Insurance Company. It is worth mention here some judgments of Hon'ble Superior Court. Hon'ble Supreme Court in Bimla Devi and Ors Vs Himachal Road Transport Corporation and Ors (2009) 13 SCC 530 has held that the " Claim Tribunal has to decide the negligence on the touchstone of preponderance of probability and holistic view is to be taken while dealing with the Claim petition".
11. In National Insurance Company Ltd Vs Pushpa Rana & Ors 2008 (101) DRJ 645 the Hon'ble High Court of Delhi has held that "The last contention of the appellant insurance company is that the respondents claimants should have proved negligence on the part of the driver and in MACT no.221/2017 Vimala Devi & Ors & Ors. Vs. Raj Kumar & Ors. Page 9 of 16 this regard Ld Counsel has placed reliance on the judgment of Hon'ble Supreme Court in Oriental Insurance Co Ltd Vs Meena Variyal; 2007(5) SCALE 269. ( LQ/SC/2007/437). On perusal of award of the Tribunal, it becomes clear that the wife of the deceased had produced (I) certified copy of the criminal record of criminal case in FIR No.955/2004, pertaining to involvement of the offending vehicle. (ii) criminal record showing completion of investigation of police and issue of charge sheet under Section 279/304A IPC against the driver, (iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of the deceased. These documents are sufficient proofs to reach at the conclusion that driver was negligent. Proceedings under Motor Vehicle Act are not akin to proceedings in a Civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on the part of the driver." The Hon'ble High Court of Delhi in Oriental Insurance Company Ltd Vs Som Dutt Sharma MAC App 758/2015 & CP Appl 22387/2015 has also held that to determine the rash and negligent, the criminal case record is sufficient to proof to reach to the conclusion that driver was negligent.
12. It is a matter of record that there is no evidence at all to show that victim was at fault, in any way. The fact that Sh.Pawan Kumar died in that accident is also supported by his postmortem report on the dead body of victim. After investigation, police indicted respondent no.1 for offences punishable under Sections 279/337/304A of IPC. The FIR has been registered against respondent no.1 and he has not filed MACT no.221/2017 Vimala Devi & Ors & Ors. Vs. Raj Kumar & Ors. Page 10 of 16 any complaint against the police before any higher authority against his such implication. Petitioners have placed on record the certified copies of charge sheet Ex PW1/2 and order sheet Ex PW1/1 vide which the concerned Court has taken cognizance for the offence U/S 279/304A IPC against R.1. Considering all the evidence as discussed above, it stands proved that accident in question was caused due to rash or negligent driving of Tractor bearing no. RJ10RB5856 by respondent no.1 thereby causing death of Sh.Pawan Kumar.
13. This issue is therefore decided in favour of the petitioners and against respondents by holding that victim Pawan Kumar died in a vehicular accident due to rash and negligent driving of a Tractor bearing no. RJ 10RB5856 by respondent no.1.
ISSUE No.2: Whether the petitioners are entitled to compensation, if so, what amount and from whom? OPP.
14. It is not disputed during arguments that petitioners are the wife, daughter and parents of victim. Moreover, this fact is established by statement of Smt Vimala (PW1) wife of the deceased that petitioners are dependent upon the deceased. Being LRs of deceased, petitioners are well within their rights to claim compensation from respondents.
15. Now coming to the extent of compensation. According to the petitioner, at the time of accident, the deceased Pawan Kumar was working private job in New Zaika at Dwarka, Delhi as a kitchen Supervisor and was earning Rs.30,000/ p.m. But petitioners have not produced any evidence to prove the fact as to where New Zaika Restaurant was situated in Dwarka, MACT no.221/2017 Vimala Devi & Ors & Ors. Vs. Raj Kumar & Ors. Page 11 of 16 Delhi at the time of accident or if it was situated then by whom the said Restaurant was owned. However,Ld Counsel for the petitioners has conceded to the fact and submitted that the income of the deceased may be assessed as per Minimum Wages Act prevailing in Rajasthan at the time of accident. So this Tribunal has assessed the monthly income of deceased as 5.226/ pm for computation of compensation as per Minimum Wages of unskilled labour prevalent in Rajasthan at the time of accident.
16. The petitioners have placed on record a certificate being issued by District Siksha and Prakshir Sanstha, Jhunjun, Rajasthan showing date of birth of deceased ( Pawan Kumar Gurjur) as 02.07.1991. As such the age of the deceased was 25 years and five months at the time of accident. And as per the judgment in the case of National Insurance Company Limited Vs. Pranay Sethi and others of Hon'ble Supreme Court the net income of the deceased is to be counted after deduction of tax and future addition @ 40% in the monthly salary of victim.
17. The deceased was having four LRs, hence deceased/victim is presumed to be spending 1/4th of his income on his personal expenses. And, therefore, the income for the purpose of loss of dependency has to be taken as Rs.5,487.30/ ( 5,226/ + 2,090.40/ - 1829.10/) per month.
18. To calculate loss of dependency, the multiplier has to be taken on the basis of age of deceased. The deceased was aged about 25 year of age. A multiplier of 18 is thus taken in calculating loss of dependency. Counting in this way, loss of dependency comes to Rs. 11,85,256.80/ ( 5,487.30/ x 12 x 18). This amount of Rs.11,85,500/ ( in lumpsum) MACT no.221/2017 Vimala Devi & Ors & Ors. Vs. Raj Kumar & Ors. Page 12 of 16 is allowed to petitioners for loss of dependency.
19. Apart from amount mentioned above, petitioner No.1 is also granted a sum of Rs.17,000/ for funeral expenses, Rs.17,000/ for loss of estate and Rs. 1,76,000/ (Rs.44,000/ each of the petitioiner) for loss of consortium.
i. Loss of dependency Rs. 11,85,500/
ii. Funeral expenses Rs. 17,000/
iii. Loss of Estate Rs. 17,000/
iv. Loss of consortium Rs. 1,76,000/-
Total Rs. 13,95,500/
20. Now coming to the extent of liability. It has already been held herein above that the deceased died due to rash and negligent driving of respondent no.1. He is primarily liable to make payment. However, the petitioners have made the respondent no.3 (insurance company) as one of the party seeking direction to respondent no.3 to pay the compensation.
21. This issue is therefore decided in favour of the petitioners and against respondents by holding that petitioners are entitled for compensation from respondent no.3.
(RELIEF)
22. The petition in hand is allowed. Respondent no.3 is directed to pay a sum of Rs. 13,95,500/ alongwith interest @ 7.5% to the petitioners as compensation in MACT no.221/2017 Vimala Devi & Ors & Ors. Vs. Raj Kumar & Ors. Page 13 of 16 this case, within 30 days from today, from the date of filing of claim petition i.e. 23.02.2017 till the date of compliance i.e., 01.02.2024. Thereafter interest @ 12% p.a for delayed payment. Amount of interim compensation (if any) be deducted from this amount. The awarded amount shall remain as tax free in view of the judgment of Hon'ble High Court in case in R/Special Civil Application No.4800 of 2021 titled The Oriental Insurance Co Ltd Vs Chief Commissioner of Income Tax (TDS) decided on 05.04.2022.
APPORTIONMENT
23. Here in the present case the petitioner No.3 Smt Nanchi has deposed in her evidence being tendered by way of affidavit that petitioner No.1 Smt Vimala has remarried on 19.11.2018 with one Sh Sajjan S/O Late Sh Trilok Chand R/O Village & P.O Ramgarh Ward No.2 Tehsil Dattaramgarh District Sikar, Rajasthan and from that wedlock gave birth to one boy child on 13.08.2019. Ld Counsel for petitioner No.1 and 2 has also admitted this fact. In the given facts and circumstances the compensation to the Petitioners be distributed as follows: S Name of Age Relation with Amount of Amount to be Amount kept Period of FDR Mode:-
N Petitioner/Claimant (yrs) Injured/ Award released in FDR Cash/ Deceased Cheque/DD
1. Vimala Devi 26 yrs Wife Rs.1,39,550/ Rs. 1,39,550/ Nil Nil RTGS (10% of awarded alongwith interest amount) @ 7.5% from the alongwith interest @ date of filing of 7.5% from the date of petition till the filing of petition till date of compliance.
the date of
compliance. ( As she
has remarried)
2 Manavi Gurjar 08 yrs Daughter Rs. 6,97,750/ Nil Rs. 6,97,750/ Ten yearly FDRs
(50% of awarded alongwith interest of equal amount
amount) @ 7.5% from the
alongwith interest @ each for a period of
date of filing of
7.5% from the date of
petition till the Ten years to
filing of petition till
date of
the date of Twenty years with
compliance.
MACT no.221/2017 Vimala Devi & Ors & Ors. Vs. Raj Kumar & Ors. Page 14 of 16
compliance. cumulative
interest .The first
FDR shall be started
to be paid to her
when she attains
her majority
3. 61 yrs Mother Rs. 2,79,100/ Rs.27,910/ Rs. 2,51,190/ Two yearly FDRs
Smt Nanchi
(20% of awarded alongwith interest of equal amount
amount)
Devi alongwith interest @
@ 7.5% from the
each for a period of
date of filing of
7.5% from the date of
petition till the one year to Two
filing of petition till
date of
the date of years with
compliance.
compliance.
cumulative interest
4. 67 yrs Father Rs. 2,79,100/ Rs.27,910/ Rs. 2,51,190/ Two yearly FDRs
Sh Liladhar
(20% of awarded alongwith interest of equal amount
amount)
Gurjar alongwith interest @
@ 7.5% from the
each for a period of
date of filing of
7.5% from the date of
petition till the One year to Two
filing of petition till
date of
the date of years with
compliance.
compliance.
cumulative interest
TOTAL Rs. 2,005,419/- Rs.1,95,370/- Rs.12,00,130/-
24. The salient features as prescribed in the judgment in Rajesh Tyagi Vs. Ramesh Chandra Gupta FAO No. 842/2009 and MAC. App. No. 422/2009 decided on 07.11.2014 are to be applied:
(i) The fixed deposit be renewed automatically till the period prescribed by the Court.
(ii) The interest on the fixed deposit be paid monthly.
(iii) The monthly interest be credited automatically in the saving account of the claimant.
(iv) Original fixed deposit receipt be retained by the bank in safe custody.
However, the original passbook shall be given to the claimant along with the photocopy of the FDR.
(v) The original fixed deposit receipt be handed over to the claimant at the MACT no.221/2017 Vimala Devi & Ors & Ors. Vs. Raj Kumar & Ors. Page 15 of 16 end of the fixed deposit period.
(vi) Photo identity card shall be issued to the claimant and the withdrawal shall be permitted only after due verification by the Bank of the identity card of the claimant.
(vii) No cheque book/ATM/debit card/credit card shall be issued to the claimant without permission of the Court.
(viii) No loan, advance or withdrawal or preencashment of FD amount shall be allowed on the fixed deposit without permission of the Court.
25. Respondent no.3 is directed to deposit entire amount of compensation with this tribunal, within 30 days from today, with advance notice to petitioner. File be consigned to record room.
ANNOUNCED IN THE OPEN (JAGDISH KUMAR ) COURT ON 02.01.2024 POMACT02,SOUTHWEST, DWARKA, NEW DELHI MACT no.221/2017 Vimala Devi & Ors & Ors. Vs. Raj Kumar & Ors. Page 16 of 16